P. M. PATNAIK, J. ( 1 ) THE appellant assails his conviction under sections 363, 366 and 376 (1) of the Indian Penal Code and rigorous sentences of 5 years each under the first two sections while ten years under the latter section and the sentences are to run concurrently, as awarded by the Assistant Sessions Judge-cum C. J. M. Bhawanipatna. ( 2 ) PROSECUTION case is, victim Kumari Sashi then aged about 15 years, while sleeping in her house with sister Renuka, in the night of 8. 9. 1990 about 1. 30 a. m. was enticed by the appellant and another Gopilal Bahadur (since acquitted from her village to Kesinga and from Kesinga she was taken to Dharamgarh by bus to the house of brother-in-law of appellant where she was subjected to forcible sexual intercourse against her will by the appellant. The appellant pleaded the prosecution allegations as tendentious. ( 3 ) HEARD Mr. S. K. Mund, learned counsel for the appellant and Mr. G. K. Mohanty, learned Additional Standing Counsel for the State. It is submitted by Mr. Mund that the materials on record disclose that it was a case of consent by the victim girl who is proved to be more than 16 years of age and, therefore, question of rape did not arise. He further submitted that in view of their proved relationship for love, there is no question of appellant forcing the victim to marry. Mr. Mohanty, learned Additional Standing Counsel, however, supported the judgment of the trial court. ( 4 ) IT would be opposite to first deal with the age of the victim girl (P. W. 12 ). The trial court has dealt with this aspect while dealing with the evidence of P. W. 14, the doctor who conducted the ossification test. P. W. 14 conducted the ossification test of the victim girl after taking the X-ray of both wrists, knees and elbows. On examination he noticed that the epiphysis around the elbow joint was fused, epiphysis at the lower end of femur were yet to be fused and epiphysis at the upper end of tibia were about to be fused but epiphysis at the lower end of radius and ulna and at the upper end of fibula were not fused. On this examination he came to a conclusion that the probable age of the girl was 15 to 16 years. Mr. On this examination he came to a conclusion that the probable age of the girl was 15 to 16 years. Mr. Mund, learned counsel for the appellant that in para 2 of the cross examination of the Doctor has admitted that the exact age cannot be ascertained through ossification test, submits it. It is found from the evidence of the Doctor in cross-examination that he admitted that according to Modi, the variation of age is up to three years this way of that way. Mr. Mund was critical when he submitted that the trial court committed an error in noting that the margin of three years had already been taken into account by P. W. 14 while coming 1. 0 the conclusion that the age of the girl was 15 to 16 years. 1 cannot but accept the submission of Mr. Mund in this respect. The trial court in para 14 of the judgment has accepted the argument of the prosecution as follows: It is argued by the prosecution that because of margin of error of two years, P. W. 14 who conducted ossification test of P. W. 12 assessed her age to be 15 to 16 years on 11. 8. 1990. feel that there is much force in the submission advanced by the learned Associate P. P. Hence I hold that the age of the victim girl (P. W. 12) was within 16 years on the date of occurrence. . . . This finding of the trial court is not accepted because P. W. 14 has nowhere stated in his evidence that after giving a margin error of three year either side he found the age of the girl on to 16 years. In the absence of such opinion it was not proper for the trial court to arrive at an opinion with regard to a technical subject like the medical science for which experts are examined to assist the court. In the absence of such opinion it was not proper for the trial court to arrive at an opinion with regard to a technical subject like the medical science for which experts are examined to assist the court. In the absence of the Doctors opinion that he has so indicated the age, first it is not proper to hold that the age of victim Sashi was below 16 years, and secondly once the Doctor is of the opinion that there could be a margin of error of three years either way, in case of criminal charge benefit should always go to the accused vide decision reported in Jayamala v. Home Department, Government of Jammu and Kashmir and others, where the Court held, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either sidett. If this is accepted then the age of the victim (P. W. 10) was beyond 16 years of age and even beyond 18 years. ( 5 ) HAVING thus found that P. W. 12 at the relevant time was more than 16 years of age, in order to find the appellant guilty under section 376 (1) I. P. C. it would be necessary for the prosecution that the sexual intercourse was with force and against her will. But the evidence of P. W. 12, the victim girl, nowhere, shows that the appellant ever forced her for sexual intercourse. So much so she never even complained of this. Rather, the entire evidence shows that she moved from place to place with the appellant without raising any protest and so, the sexual intercourse with him was with her full consent. This conclusion is arrived at keeping in view the letters exhibited in this case indicating their love affairs prior to the date of occurrence. Thus, the victim, P. W. 12 is found to be more than 16 years of age at the time of occurrence. So the question of conviction of the appellant under section 376, I. P. C would not arise. ( 6 ) IT is urged by Mr. G. K Mohanty, learned Additional Standing Counsel, that the accused was responsible for taking away and enticing P. W. 12 which, according to Mr. Mohanty, has been amply proved from her evidence itself. So the question of conviction of the appellant under section 376, I. P. C would not arise. ( 6 ) IT is urged by Mr. G. K Mohanty, learned Additional Standing Counsel, that the accused was responsible for taking away and enticing P. W. 12 which, according to Mr. Mohanty, has been amply proved from her evidence itself. But going through the evidence I find her to have stated that sleeping with her sister in her house and her parents were also sleeping in another room about I a. m. Gopilal Bahadur (accused since acquitted) knocked at the door and she opened it. Thereafter she stated that when Gopilal called for her, she accompanied him to Narala Road Railway Station. It was the other accused Gopilal who laid her into the train though he did not accompany and so far this appellant is concerned, she saw him at the Railway Station and thereafter both went to Kesinga. Thus it will be seen that when P. W. 12 left the house, the appellant was nowhere in the scene. Therefore, question of in his appellant taking her with him did not arise. Mr. Mohanty, on the other hand, submitted that the letter proved that the appellant promised to marry her and with that promise he enticed P. W. 12 to other places. I may point out that the prosecution came forward with a case of previous intimacy between the two. It can hardly be believed that a person would persuade a girl of the age of under sixteen P. W. 12 through letter to go away with him. Her evidence that they moved from place to place does indicate that her movement was voluntary and, therefore, the appellant cannot be convicted of any offence. ( 7 ) IN the result, the appeal is allowed, The appellant is acquitted of the charges under section 363,366 and 376 (1) I. P. C. and he be set at liberty forthwith. Appeal allowed .